Shivalingeshwar Oil Mill Vs. Chennaveerappa Basalingappa Kaddi - Court Judgment

Excerpt:
karnataka debt relief act, 1980 (karnataka act no. 29 of 1980) - sections 2(5), 3(b) & (c): civil procedure code, 1908 (central act no. 5 of 1908) - section 47 - conspectus of provisions - benefit of act available even in execution proceedings & open to take defence under act against execution of decree - under section 47 cpc no distinction between compromise decree or otherwise : executing court to decide all questions.;(i) in the light of the provisions of sections 2(5) and 3(b) and (c) of the act, it is made clear that the benefit of the act is extended to a person entitled to under the act in respect of the debt sought to be recovered even in execution proceedings pending on the date of the commencement of this act..... the petitioner had a right to take a defence under the act against the execution of the decree.;(ii) clause (c) of section 3 of the act refers to any debt sought to be recovered from the debtor under the act in execution proceedings and section 47 cpc refers to 'decree'. it does not make any distinction between 'decree on compromise' and 'decree otherwise by compromise'. therefore, all questions arising between the parties to the suit in which decree was passed and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree as contemplated by section 47 cpc. - - 29/1978, for the reasons best known to him, has agreed to compromise the suit. 8. with a view to appreciate the rival contentions urged before me, it is better to refer to section 2(5) of the act.orderm. ramakrishna, j1. the revision petitioner is a judgment-debtor in execution case no. 6/1991 on the file of the court of munsiff, haveri. he filed an application-i.a.i. seeking for certain interrogatories along with a copy of the objection in which a specific stand was taken by him saying that judgment-debtor is a debtor within the meaning of the karnataka debt relief act, 1960 (karnataka act 29/1980), (the act for short).2. he has prayed for dismissing the execution petition on the ground that he is not liable to pay the decree amount as he is entitled to take defence available under the said act.3. in the course of the objection, he has brought to the notice of the court that he being a debtor under the act, the decree cannot be executed against him to recover the decreetal amount. the learned munsiff rejected the application, holding that he cannot go beyond the decree. aggrieved by this order, the judgment-debtor has approached this court in this revision petition.4. i have heard learned counsel on both sides.5. sri f.v. patil, learned counsel for the petitioner, contended that nodoubt the judgment-debtor being a defendant in the original suit in o.s. 29/1978, for the reasons best known to him, has agreed to compromise the suit. but that decree will not bind him from taking the defence available under the act. the contention is that having regard to provisions of sub-section (5) of section 2 and section 3(b) of the act, no decree can be executed for recovery of the decretal amount from the debtor. however, the learned munsiff proceeded to reject the application on the ground that he cannot go beyond the decree.6. the learned counsel for the respondent however contended that once the judgment-debtor/petitioner herein compromised the claim of the petitioner, the compromise decree is binding on him, in such a case, it is not open to the judgment-debtor to contend in the execution proceedings that he was a debtor within the meaning of the act.7. the second contention of the learned counsel for the respondent is that on the specific contention taken by the respondent/ decree-holder in his objections to the application that the contention that the petitioner/judgment-debtor was a debtor under the act, was false, the learned munsiff rightly rejected the application.8. with a view to appreciate the rival contentions urged before me, it is better to refer to section 2(5) of the act. it reads:'debt' means any liability in cash or kind whether secured or unsecured and whether decreed or not and includes any interest due on such debt.section 2(6) deals with definition of debtor. it reads:'debtor' means a person who is - (i) a landless agricultural labourer;(ii) a person belonging to the weaker section of the people or(iii) a small farmer and from whom a debt is due. the term 'small farmer' has been defined under sub-section (9) of section 2. clause (c) of section 3 states:'(c) all suits and other proceedings including appeals, revisions, attachments or execution proceedings pending on the date of commencement of this act against any debtor or his surety for the recovery of any such debt shall abate;provided that nothing in this clause shall apply to the sale, in relation to any such debt, of - (i) xxx xxx xxx (ii) any immoveable property held through court and confirmed before such commencement.' therefore, in the light of the provisions of sections 2(5) and 3(b) and (c) of the act, it is made clear that the benefit of the act is extended to a person entitled to under the act in respect of the debt sought to be recovered even in execution proceedings pending on the date of the commencement of this act. in the instant case, when the petitioner took a specific contention that he was a debtor within the meaning of the act, the act was in force and the execution proceedings were still pending for recovery of the decretal amount. therefore, the petitioner had a right to take a defence under the act against the execution of decree.9. unfortunately, the learned munsiff instead of applying his mind to the provisions of the act and of section 47 of c.p.c. has simply brushed aside the defence taken by the petitioner/judgment-debtor and rejected the application.10. section 47 is abundantly clear that all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.11. clause (c) of section 3 of the act refers to any debt sought to be recovered from the debtor under the act in execution proceedings and section 47 c.p.c. refers to 'decree'. it does not make any distinction between 'decree on compromise' and 'decree otherwise by compromise'. therefore, all questions arising between the parties to the suit in which decree was passed and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree as contemplated by section 47 c.p.c,12. therefore, the learned munsiff ought to have determined the defence taken by the petitioner/judgment-debtor that he was a debtor within the meaning of the act and therefore he could not be proceeded against in the execution proceedings. without doing so, he straightaway rejected the application of the petitioner. hence, the order under revision cannot be sustained.13. in view of the foregoing, i make the following:

Judgment:
ORDER

M. Ramakrishna, J

1. The Revision Petitioner is a Judgment-debtor in Execution Case No. 6/1991 on the file of the Court of Munsiff, Haveri. He filed an application-I.A.I. seeking for certain interrogatories along with a copy of the objection in which a specific stand was taken by him saying that Judgment-debtor is a debtor within the meaning of the Karnataka Debt Relief Act, 1960 (Karnataka Act 29/1980), (the Act for short).

2. He has prayed for dismissing the Execution Petition on the ground that he is not liable to pay the decree amount as he is entitled to take defence available under the said Act.

3. In the course of the objection, he has brought to the notice of the Court that he being a Debtor under the Act, the decree cannot be executed against him to recover the decreetal amount. The learned Munsiff rejected the application, holding that he cannot go beyond the decree. Aggrieved by this order, the Judgment-Debtor has approached this Court in this Revision Petition.

4. I have heard learned Counsel on both sides.

5. Sri F.V. Patil, learned Counsel for the petitioner, contended that nodoubt the Judgment-debtor being a defendant in the Original Suit in O.S. 29/1978, for the reasons best known to him, has agreed to compromise the suit. But that decree will not bind him from taking the defence available under the Act. The contention is that having regard to provisions of sub-section (5) of Section 2 and Section 3(b) of the Act, no decree can be executed for recovery of the decretal amount from the debtor. However, the learned Munsiff proceeded to reject the application on the ground that he cannot go beyond the decree.

6. The learned Counsel for the respondent however contended that once the Judgment-debtor/petitioner herein compromised the claim of the petitioner, the compromise decree is binding on him, in such a case, it is not open to the Judgment-debtor to contend in the execution proceedings that he was a debtor within the meaning of the Act.

7. The second contention of the learned Counsel for the respondent is that on the specific contention taken by the respondent/ decree-holder in his objections to the application that the contention that the petitioner/judgment-debtor was a debtor under the Act, was false, the learned Munsiff rightly rejected the application.

8. With a view to appreciate the rival contentions urged before me, it is better to refer to Section 2(5) of the Act. It reads:

'Debt' means any liability in cash or kind whether secured or unsecured and whether decreed or not and includes any interest due on such debt.

Section 2(6) deals with definition of Debtor. It reads:

'Debtor' means a person who is -

(i) a landless agricultural labourer;

(ii) a person belonging to the weaker section of the people or

(iii) a small farmer and from whom a debt is due.

The term 'small farmer' has been defined under sub-section (9) of Section 2. Clause (c) of Section 3 states:

'(c) All suits and other proceedings including appeals, revisions, attachments or execution proceedings pending on the date of commencement of this Act against any debtor or his surety for the recovery of any such debt shall abate;

Provided that nothing in this clause shall apply to the sale, in relation to any such debt, of -

(i) xxx xxx xxx (ii) any immoveable property held through Court and confirmed before such commencement.'

Therefore, in the light of the provisions of Sections 2(5) and 3(b) and (c) of the Act, it is made clear that the benefit of the Act is extended to a person entitled to under the Act in respect of the debt sought to be recovered even in execution proceedings pending on the date of the commencement of this Act. In the instant case, when the petitioner took a specific contention that he was a debtor within the meaning of the Act, the Act was in force and the execution proceedings were still pending for recovery of the decretal amount. Therefore, the petitioner had a right to take a defence under the Act against the execution of decree.

9. Unfortunately, the learned Munsiff instead of applying his mind to the provisions of the Act and of Section 47 of C.P.C. has simply brushed aside the defence taken by the petitioner/judgment-debtor and rejected the application.

10. Section 47 is abundantly clear that all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

11. Clause (c) of Section 3 of the Act refers to any debt sought to be recovered from the debtor under the Act in execution proceedings and Section 47 C.P.C. refers to 'decree'. It does not make any distinction between 'decree on compromise' and 'decree otherwise by compromise'. Therefore, all questions arising between the parties to the suit in which decree was passed and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree as contemplated by Section 47 C.P.C,

12. Therefore, the learned Munsiff ought to have determined the defence taken by the petitioner/Judgment-debtor that he was a debtor within the meaning of the Act and therefore he could not be proceeded against in the execution proceedings. Without doing so, he straightaway rejected the application of the petitioner. Hence, the order under Revision cannot be sustained.

13. In view of the foregoing, I make the following: